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10 February 2015

Are your job application questions discriminatory?

Your job application questions may be inadvertently putting your business at risk of a discrimination complaint, which could lead to costly litigation and potential penalties.

Your job application questions may be inadvertently putting your business at risk of a discrimination complaint, which could lead to costly litigation and potential penalties.

In the recent matter of Willmott v Woolworths Ltd [2014] QCAT 601, the Queensland Civil and Administrative Tribunal (QCAT) found that Woolworths was in contravention of the Anti-Discrimination Act 1991 (Qld) (AD Act) due to several questions on its job application form.

Woolworths’ online job application required applicants to provide their date of birth, gender and upload evidence of their right to work in Australia.

A potential job applicant objected to this and made an application to QCAT alleging that Woolworths had unlawfully discriminated against him by requiring him to provide this information when applying for the job.

The AD Act prohibits discrimination on the basis of sex, age, gender identity and race. The AD Act also prohibits a person asking another person to supply information on which unlawful discrimination might be based, unless the information is reasonably required for a purpose that does not involve discrimination.

Woolworths argued that the information was required for the following reasons:

  • The date of birth was necessary because:
    • a new employee file could not be created without a person’s date of birth;
    • a person’s age can affect their pay rate (i.e. junior rates);
    • it assisted Woolworths to differentiate between employees with the same name; and
    • some positions required the employee to be over the age of 18 (e.g. liquor outlets).
  • The gender was required because Woolworths would have obligations under the Government Workplace Gender Equality instrument to report on gender make-up in recruitment and employment.
  • The right to work evidence was necessary for Woolworths to comply with its obligations under the Migration Act 1958 (Cth).

QCAT did not agree and found that requiring the job applicant to provide his date of birth, gender and evidence of his right to work in Australia was a breach of the AD Act.

QCAT made the following findings:

  • Asking if the applicant was over 18 (if the job required it) was sufficient and Woolworths did not need to ask for the applicant’s date of birth.
  • The Workplace Gender Equality obligations only require an employer to provide gender information that it gathers in the recruitment process. This is not a positive obligation on the employer to gather the information. Further, the gender reporting requirement had not yet commenced.
  • Requiring a potential applicant to upload documents containing confidential information like birth certificates, passports and visas when first applying for a position would be difficult to justify. This information could be required to be sighted if the applicant was being offered a position or had made it through to the interview process. Further, it is not an offence under the Migration Act to consider applications or interview potential employees who are not permitted to work in Australia.

Before the matter was heard, Woolworths changed its online application form to address all of the applicant’s complaints. These changes were to QCAT’s satisfaction and QCAT did not require any further rectification. The applicant was awarded $5,000 compensation for embarrassment, humiliation and a notional amount for the loss of chance of obtaining the position with Woolworths.

This matter was brought under Queensland’s anti-discrimination legislation. However, there are similar provisions in the relevant Federal anti-discrimination legislation, which could lead to a similar result.

This matter is a good reminder for businesses to review their job application forms and processes and check that their requirements are not inadvertently discriminating against potential employees. Businesses should ensure that it is reasonable to require an applicant to provide the requested information or documents at that particular point in the recruitment process.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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